1018-00008 · Penterra Pharmaceuticals Corp · Post-Termination & Litigation Prep

litigation-hold-notice.docx DOCUMENT M&A / Corporate

54 / 75 ← → ✕

PRIVILEGED AND CONFIDENTIAL — ATTORNEY-CLIENT COMMUNICATION / ATTORNEY WORK PRODUCT

CALDERWOOD & HARKNESS LLP 200 Park Avenue, 42nd Floor New York, NY 10166 Telephone: (212) 506-7000 Facsimile: (212) 506-7001 www.calderwoodharkness.com

October 5, 2024

LITIGATION HOLD NOTICE PRESERVATION OF DOCUMENTS AND ELECTRONICALLY STORED INFORMATION

To: Thomas F. Holbrook, Esq. General Counsel & Secretary Penterra Pharmaceuticals Corp. 1100 Meridian Boulevard, Suite 400 Princeton, NJ 08540

From: Oliver Mackenzie, Partner, and Megan Chu, Associate Calderwood & Harkness LLP

Re: Litigation Hold Notice — Preservation of Documents and Electronically Stored Information Relating to the Proposed Acquisition of Veridian Biosciences, Inc.

Matter No.: 1018-00008

Dear Tom:

We write on an urgent basis to issue this litigation hold notice on behalf of Penterra Pharmaceuticals Corp. This notice requires the immediate preservation of all documents, electronically stored information, and tangible materials as described herein. Please circulate this notice to all identified custodians and to the head of Penterra's IT department within one (1) business day of your receipt. The obligations set forth in this notice take effect immediately upon receipt and are ongoing until this hold is formally released in writing by Calderwood & Harkness LLP.

I. PURPOSE AND LEGAL OBLIGATION

This notice directs Penterra Pharmaceuticals Corp. ("Penterra" or the "Company") to immediately preserve all documents, electronically stored information ("ESI"), and tangible materials relating to the proposed acquisition of Veridian Biosciences, Inc. ("Veridian") and the termination thereof, as more fully described in the sections that follow.

As you are aware, on September 30, 2024, Penterra terminated the Stock Purchase Agreement dated June 10, 2024 (the "SPA") pursuant to Section 8.1(d) thereof, on the grounds that a material adverse effect ("MAE") had occurred with respect to Veridian's business, rendering the conditions to Buyer's closing obligations under Sections 7.2(a) and 7.2(b) incapable of being satisfied prior to the Outside Date of December 10, 2024. The termination followed Penterra's Deficiency Notice dated September 6, 2024, in which the Company formally notified Veridian and the Sellers of the facts and circumstances constituting, in Penterra's determination, a material adverse effect within the meaning of Section 1.1 of the SPA.

Prior to termination, Veridian disputed Penterra's MAE determination. Specifically, by letter dated September 13, 2024, counsel for Veridian and the Sellers — Zalcourt Archer & Cole LLP (Rebecca Whitmore and Jonathan Pratt) — communicated Veridian's position that no material adverse effect had occurred and demanded that Penterra proceed to close the transaction in accordance with the terms of the SPA. That correspondence, and subsequent communications between counsel, made clear that Veridian and the Sellers intend to pursue all available legal remedies, including claims for breach of contract and specific performance, in the event Penterra did not withdraw its termination notice and consummate the closing.

Based on these communications and the circumstances surrounding the transaction, Calderwood & Harkness LLP reasonably anticipates that Veridian will commence litigation in the Court of Chancery of the State of Delaware seeking, among other things, claims for breach of contract and specific performance compelling Penterra to close the acquisition. The anticipated case caption is Veridian Biosciences, Inc. v. Penterra Pharmaceuticals Corp., C.A. No. 2024-_ (Del. Ch.), and we expect that a complaint may be filed on or around November 15, 2024, or potentially sooner, depending on the pace of pre-suit developments.

Under well-established law, Penterra has a legal obligation to preserve all documents and ESI that are potentially relevant to reasonably anticipated litigation. This duty attaches at the point litigation becomes reasonably foreseeable — which, given Veridian's express dispute of the MAE determination and demand for closing, is no later than September 13, 2024, and in any event is triggered as of the date of this notice. The duty of preservation is broad and extends to all materials that may be relevant to any claim or defense in the anticipated proceeding, regardless of whether Penterra believes a particular document is helpful, harmful, privileged, or immaterial. Relevance determinations and privilege designations will be made by counsel at the appropriate time.

Failure to preserve materials within the scope of this hold may result in severe consequences, including court-imposed sanctions, adverse inference instructions (permitting a factfinder to presume that destroyed evidence was unfavorable to Penterra), monetary penalties, and other remedies available under the Delaware Court of Chancery Rules and applicable law. All custodians and personnel who receive this notice are expected to treat this preservation obligation with the utmost seriousness and to comply fully with the instructions set forth herein.

II. SCOPE OF THE LITIGATION HOLD

The scope of this litigation hold is defined by subject matter, temporal period, and custodian, as set forth below. If there is any doubt as to whether a particular document, communication, or data source falls within the scope of this hold, the document or data should be preserved and counsel should be consulted.

A. Subject Matter Scope

All documents and ESI relating to, concerning, referencing, or in any way connected with the following subject matters must be preserved:

1. The Transaction Generally. All documents and communications relating to the proposed acquisition of 100% of the outstanding capital stock of Veridian Biosciences, Inc. for a purchase price of $900,000,000 in cash (subject to customary purchase price adjustments), including all aspects of the transaction from its inception through the present date and continuing. This includes, without limitation, all documents relating to the origination of Penterra's interest in acquiring Veridian (on or about February 12, 2024, when the Penterra Board of Directors authorized exploration of the acquisition opportunity), all negotiations between the parties and their respective advisors, all due diligence activities, all board-level deliberations and approvals, all deal process materials, all communications with third-party advisors, and all post-signing activities through and including the termination of the SPA and all post-termination events and communications.

2. The Stock Purchase Agreement and Ancillary Agreements. The SPA dated June 10, 2024, including all prior drafts (beginning with the initial draft circulated on or about April 15, 2024 and all subsequent revised drafts, markups, redlines, and comments), the final executed agreement, the Disclosure Schedules (including all updates thereto), and all ancillary transaction agreements, including but not limited to:

(a) the Escrow Agreement with Fidelis National Escrow Corp., providing for the establishment and administration of the indemnification escrow and purchase price adjustment escrow;

(b) the Stockholder Representative Agreement, pursuant to which David Ng was appointed as the representative of the Sellers for post-closing purposes;

(c) the Non-Competition and Non-Solicitation Agreements to be executed by Dr. Julian Marek (Veridian's Chief Executive Officer) and Dr. Priya Chandrasekaran (Veridian's Chief Scientific Officer);

(d) the Transition Services Agreement, setting forth the terms pursuant to which Veridian would provide certain transitional services to Penterra following the closing;

(e) the Side Letter regarding Financing Cooperation Obligations, addressing Veridian's obligation to cooperate with Penterra's debt financing efforts; and

(f) all other agreements, certificates, instruments, and documents contemplated by or executed in connection with the SPA.

3. The Material Adverse Effect Analysis. All documents, analyses, memoranda, communications, presentations, and work product (including draft and final versions) relating to the determination, evaluation, or assessment of whether a material adverse effect had occurred with respect to Veridian or its business, condition (financial or otherwise), results of operations, assets, or prospects. This category includes, without limitation:

(a) all analyses of the MAE definition set forth in Section 1.1 of the SPA, including the specific language of the definition and the scope and applicability of the enumerated MAE carveouts (relating to pandemics and public health emergencies, general economic conditions, conditions affecting the biopharmaceutical industry generally, changes in applicable law or accounting standards, natural disasters, acts of war or terrorism, conditions in the financial or capital markets, and the announcement or pendency of the transactions contemplated by the SPA);

(b) all analyses of the disproportionate impact exception to the MAE carveouts, including any assessment of whether the events at issue disproportionately affected Veridian as compared to other similarly situated companies in the biopharmaceutical industry;

(c) all internal Penterra memoranda, presentations, or analyses evaluating the factual basis for Penterra's MAE claim, including assessments of the clinical, regulatory, financial, and commercial impact of the events described in Section II.A.4 and II.A.5 below;

(d) all communications with Calderwood & Harkness LLP and other advisors regarding the MAE analysis; and

(e) all Delaware case law analyses and legal memoranda prepared in connection with the MAE determination, including analyses of Akorn, Inc. v. Fresenius Kabi AG, 2018 WL 4719347 (Del. Ch. Oct. 1, 2018), aff'd, 198 A.3d 724 (Del. 2018), and other relevant precedents.

4. VRD-4187 Clinical Data and the Marlowe Asset Management-2 Trial. All documents and communications relating to VRD-4187 — Veridian's bispecific T-cell engager compound targeting delta-like ligand 3 (DLL3) for the treatment of relapsed or refractory small cell lung cancer ("SCLC") — and the Marlowe Asset Management-2 Phase II clinical trial (registered at ClinicalTrials.gov under Identifier NCT05837291). This category specifically includes, without limitation:

(a) all documents relating to the Data Monitoring Committee ("DMC") interim analysis dated August 14, 2024, including the DMC's recommendation for enrollment suspension and dose modification protocols;

(b) all clinical safety data reviewed by the DMC or provided to Penterra, including the Grade ≥3 cytokine release syndrome ("CRS") data (reported at 23.4% in the VRD-4187 treatment arm versus 4.1% in the control arm);

(c) all data concerning treatment-related deaths in the Marlowe Asset Management-2 trial, including the seven (7) deaths in the VRD-4187 arm (representing 3.6% of the treatment cohort) and the one (1) death in the control arm (representing 0.5% of the control cohort);

(d) all efficacy data, including overall response rate data (reported at 31.4% in the VRD-4187 treatment arm versus 28.9% in the control arm, with a p-value of 0.58, failing to meet statistical significance);

(e) all data relating to the 387 patients enrolled across the 42 clinical sites in the United States and European Union participating in the Marlowe Asset Management-2 trial;

(f) all documents relating to Veridian's notification to Penterra on August 16, 2024 pursuant to Section 5.1(b) of the SPA regarding the DMC interim analysis results and enrollment suspension recommendation;

(g) the supplemental clinical assessment prepared and delivered by Broadleaf Scientific Consulting LLC on August 19, 2024, authored by or under the direction of Dr. Raymond Kapoor (lead consultant), including all underlying data, draft reports, and communications between Penterra and Broadleaf Scientific regarding the scope, findings, and conclusions of that assessment; and

(h) all other clinical data, trial protocols, safety reports, adverse event reports, statistical analyses, and communications relating to VRD-4187 or the Marlowe Asset Management-2 trial that were reviewed, received, generated, or discussed by Penterra personnel in connection with the proposed acquisition.

5. FDA Regulatory Matters. All documents and communications relating to FDA regulatory developments concerning VRD-4187 and the Marlowe Asset Management-2 trial, including without limitation:

(a) the FDA partial clinical hold imposed on August 22, 2024 on Investigational New Drug Application No. 154832 (IND 154832) for VRD-4187;

(b) all communications with or about the U.S. Food and Drug Administration regarding the clinical hold, including any correspondence between Veridian and the FDA that was shared with or obtained by Penterra;

(c) Veridian's Protocol Amendment v4.0, dated August 28, 2024, which implemented mandatory tocilizumab prophylaxis and a dose reduction from 1.5 mg/kg to 0.75 mg/kg;

(d) all internal Penterra assessments of the regulatory impact of the clinical hold and protocol amendment on the commercial viability and timeline for VRD-4187;

(e) all communications involving or referencing Dr. Anne-Marie Fontaine, Veridian's Vice President of Regulatory Affairs, regarding regulatory matters connected to VRD-4187, the Marlowe Asset Management-2 trial, or the clinical hold; and

(f) all documents relating to any other FDA or regulatory agency interactions concerning Veridian's product pipeline that were reviewed or discussed in connection with the proposed acquisition.

6. Due Diligence Materials. All due diligence materials reviewed, produced, or generated in connection with the proposed acquisition of Veridian, including without limitation:

(a) the complete contents of the virtual data room maintained by Veridian for purposes of the transaction, including all documents uploaded, all access logs and download records, and all indices or file listings;

(b) all due diligence memoranda prepared by Penterra's internal personnel or external advisors, including memoranda addressing corporate matters, intellectual property, material contracts, regulatory and FDA matters, employment and benefits, environmental matters, tax matters, litigation and disputes, and insurance;

(c) the Diligence Summary Memorandum prepared for and presented to the Penterra Board of Directors, dated June 3, 2024, summarizing the key findings and risk factors identified during the due diligence process;

(d) all due diligence request lists, follow-up questions, management presentations, and expert session materials; and

(e) all supplementary or updated due diligence conducted between signing and the termination of the SPA.

7. Deficiency Notice, Termination, and Related Correspondence. All documents and communications relating to:

(a) the Deficiency Notice issued by Penterra on September 6, 2024, including all drafts, internal deliberations regarding the content and timing of the notice, and the final notice as delivered;

(b) Veridian's response to the Deficiency Notice, dated September 13, 2024, in which Veridian disputed the occurrence of an MAE and demanded that Penterra proceed to closing;

(c) the Termination Notice issued by Penterra on September 30, 2024 pursuant to Section 8.1(d) of the SPA, including all drafts, internal deliberations, and the final notice as delivered;

(d) all correspondence between Calderwood & Harkness LLP and Zalcourt Archer & Cole LLP (Rebecca Whitmore, Jonathan Pratt) regarding the Deficiency Notice, the MAE determination, the termination, or any pre-suit dispute resolution efforts; and

(e) all other communications between the parties or their representatives relating to the dispute, whether before or after the termination of the SPA.

8. Board Materials and Corporate Approvals. All materials prepared for, presented to, or generated by the Penterra Board of Directors in connection with the proposed acquisition, including without limitation:

(a) the transaction summary presentation prepared with Garrison Zanthor & Co., LLC and delivered to the Board on June 9, 2024;

(b) the Board resolution dated June 10, 2024 authorizing the execution and delivery of the SPA and the consummation of the transactions contemplated thereby;

(d) all other Board resolutions, consents, and actions relating to the Veridian transaction;

(e) all Board meeting minutes (whether in draft or final form) for any meeting at which the Veridian transaction was discussed;

(f) all Board books, presentations, memoranda, and supporting materials distributed in advance of or during any Board meeting at which the Veridian transaction was on the agenda;

(g) all communications among Board members, or between Board members and management, relating to the Veridian transaction, including communications with Board Chair Margaret Liu Whitfield; and

(h) all committee-level materials, including any materials of the Audit Committee, Compensation Committee, or any special committee, to the extent such materials relate to the Veridian transaction.

9. Financial Advisor Communications. All communications with, and work product received from, Garrison Zanthor & Co., LLC, including without limitation:

(a) the fairness opinion delivered by Garrison Zanthor to the Penterra Board on June 9, 2024, including all drafts, presentations, and supporting analyses;

(b) all valuation analyses prepared by Garrison Zanthor, including discounted cash flow analyses, comparable company analyses, precedent transaction analyses, and any other methodologies employed;

(d) all communications between Penterra personnel and Kevin Driscoll (Managing Director, Garrison Zanthor) and any other Garrison Zanthor personnel involved in the engagement; and

(e) all pre-signing and post-signing communications between Penterra and Garrison Zanthor regarding the transaction, the MAE analysis, the termination, or the anticipated litigation.

10. Financing Documents. All documents relating to the committed debt financing for the proposed acquisition, including without limitation:

(a) the Commitment Letter dated June 7, 2024 (Reference No. CL-2024-PPCA-0607), pursuant to which Summit Ridge Capital Partners, LP (Philip Ostrander, Managing Partner) and Ironclad Trust Company, N.A. (Samantha Hwang, Senior Vice President, Leveraged Finance) committed to provide a $500,000,000 senior secured term loan facility to Penterra in connection with the acquisition;

(b) the draft credit agreement, all term sheets, fee letters (including arrangement fees and commitment fees), and any amendments, supplements, or waivers thereto;

(c) the notice of termination of the financing commitment issued on or about October 1, 2024, and all related correspondence; and

(d) all communications between Penterra and the lenders or their counsel regarding the financing, the status of the transaction, the MAE events, or the termination.

11. Representation and Warranty Insurance. All documents relating to the buyer-side representation and warranty insurance policy obtained by Penterra in connection with the proposed acquisition, including without limitation:

(a) the representation and warranty insurance policy (Policy No. AIC-RWI-2024-07892) issued by Atlas Indemnity Insurance Co. (Graham Fielding, Senior Vice President), with a policy limit of $180,000,000, a self-insured retention of $9,000,000, an annual premium of $3,960,000, and an underwriting fee of $75,000;

(b) all communications with Prescott Whitfield Insurance Brokers, Inc. (Amanda Chen-Kowalski, Managing Director) regarding the brokerage, placement, and terms of the R&W insurance policy;

(c) the underwriting process, including the no-claims declaration, the underwriting call, and all diligence materials provided to the insurer;

(d) all communications with Atlas Indemnity Insurance Co. regarding the status of the policy following the termination of the SPA; and

(e) any claims, notices, or correspondence relating to the R&W insurance policy.

12. Veridian Valuation and Financial Analysis. All internal Penterra analyses and third-party analyses of Veridian's valuation, financial condition, pipeline value, and commercial prospects, including without limitation:

(a) all financial models, discounted cash flow analyses, risk-adjusted net present value calculations, and comparable company or transaction analyses prepared or reviewed by Penterra or its advisors;

(b) all analyses referencing Veridian's FY2023 net loss of $87.3 million, Veridian's cash and cash equivalents of $112.4 million as of March 31, 2024, Veridian's cumulative total capital raised of approximately $420 million, Veridian's federal net operating loss carryforward of approximately $312 million, and the Section 382 limitations applicable thereto;

(c) all projections, forecasts, and financial plans provided by Veridian or prepared by Penterra in connection with the due diligence and valuation process; and

(d) all sensitivity analyses and scenario models assessing the impact of clinical, regulatory, or commercial developments on the value of the acquisition.

13. Antitrust and HSR Act Matters. All documents relating to antitrust review and compliance in connection with the proposed acquisition, including without limitation:

(a) the Hart-Scott-Rodino premerger notification filing submitted on April 22, 2024;

(b) the early termination of the HSR Act waiting period, granted on May 20, 2024;

(c) all work product of Stonebridge HSW Antitrust Advisors LLP (Martin Prumvane, Partner), including the antitrust risk assessment, the preparation of the HSR filing, and all communications with the Federal Trade Commission or the Department of Justice; and

(d) all internal Penterra analyses of antitrust risk associated with the proposed acquisition.

14. Post-Termination Communications. All communications occurring after September 30, 2024, between any Penterra personnel (including officers, directors, employees, and agents) and any of the following:

(a) any Veridian personnel (officers, directors, employees, or agents);

(b) any Veridian stockholders or their representatives, including David Ng (Stockholder Representative), Crestline Ventures, LP, Boreal Health Partners Fund III, and Apex Growth Equity Fund II;

(d) Ridgeway Partners LLC (Veridian's financial advisor) or any other advisor to Veridian; and

(e) any other third party, to the extent such communications relate to the terminated transaction, the dispute between the parties, or the anticipated litigation.

B. Temporal Scope

The temporal scope of this litigation hold extends to all documents and ESI created, sent, received, modified, accessed, or stored during the following periods:

(a) Primary Period: January 1, 2024 through the present date and continuing until this hold is lifted in writing by Calderwood & Harkness LLP. This period captures the full arc of the proposed transaction, from Penterra's initial consideration of the acquisition opportunity through the termination and all subsequent developments.

(b) Extended Period for Background Materials: For documents and ESI relating to Penterra's immuno-oncology strategy, the rationale for pursuing a DLL3-targeted therapeutic through acquisition, and Penterra's internal pipeline developments (including, specifically, the PPC-0921 Phase III futility analysis dated November 18, 2023, which we understand contributed to the strategic decision to pursue an external acquisition in the immuno-oncology space), the temporal scope extends back to October 1, 2023.

The hold is continuous and ongoing. All materials generated or received after the date of this notice that fall within the subject matter scope described above must likewise be preserved.

C. Custodians. The following individuals at Penterra Pharmaceuticals Corp. are identified as key custodians whose files, email accounts, electronic storage, and other repositories must be preserved in accordance with this notice:

1. Dr. Anand Rajagopal — Chief Executive Officer

2. Catherine M. Burgess — Chief Financial Officer

3. Thomas F. Holbrook — General Counsel & Secretary

4. Natalie Reiner — Senior Vice President, Corporate Development

5. Margaret Liu Whitfield — Chair, Board of Directors

6. All other members of the Penterra Board of Directors who participated in deliberations, received materials, or cast votes regarding the proposed acquisition of Veridian, including the authorization of the SPA, the review of the MAE determination, and the authorization of the termination.

7. Any Penterra employees who participated in due diligence activities, integration planning, or direct communications with Veridian personnel, Veridian's advisors, or the Sellers in connection with the proposed acquisition.

8. Any Penterra employees who received, reviewed, analyzed, or discussed the Marlowe Asset Management-2 clinical data, the DMC interim analysis, the Broadleaf Scientific supplemental assessment, or the FDA partial clinical hold on IND 154832.

Tom, we ask that you work with the relevant department heads to identify all individuals who fall within categories 6, 7, and 8 above and to ensure that those individuals receive a copy of this notice and are subject to its requirements. We are happy to consult with you on the identification of additional custodians as needed.

In addition, Penterra's IT department must be immediately notified to take the following actions:

(a) Suspend any automatic deletion, archival rotation, or purge policies applicable to the custodians listed above and to the email accounts, network drives, shared drives, local drives, mobile devices, and any other electronic storage systems or repositories used by such custodians.

(b) Preserve all backup tapes, disaster recovery media, and archived data that may contain materials within the scope of this hold.

(c) Ensure that no hardware (including laptops, desktops, servers, tablets, and mobile devices) assigned to or used by any custodian is reformatted, recycled, reassigned, or disposed of without prior written approval from the Legal Department and Calderwood & Harkness LLP.

(d) Preserve all access logs, audit trails, and system records for the virtual data room and any other shared platforms used in connection with the transaction.

III. TYPES OF MATERIALS TO BE PRESERVED

The obligation to preserve extends to all forms and formats of documents and information, including but not limited to the following categories:

A. Electronic Materials

• Email: All email communications (including all attachments, embedded images, and linked files) in all email systems used by the custodians, including Strathmore Data Systems and Outlook, archived email repositories, personal email accounts (e.g., Northgate Software, Cascade Health IT, or other consumer email services) to the extent used for any business communications relating to the Veridian transaction, and any other email platforms.

• Instant Messages and Text Messages: All text messages (SMS and MMS), instant messages, and communications transmitted via messaging platforms used by Penterra, including Northgate Data Systems, Meridian Solutions, Meridian Services Inc., Signal, or any other messaging application, to the extent such communications relate to matters within the scope of this hold.

• Electronic Documents: All electronic documents in any format, including but not limited to Microsoft Word, Excel, Northgate Services Inc., and PDF files, as well as documents created in any other application, stored on network drives, shared drives, local hard drives, laptops, tablets, mobile devices, USB drives, external hard drives, and cloud storage services (including Aldermere Systems, Cobalt Ridge Systems, Hollowell Health IT, Larkspur Technologies, and any other cloud-based storage).

• Voicemail Recordings: All voicemail messages stored on Penterra's telephone systems, mobile devices, or any other voicemail platforms, to the extent such messages relate to matters within the scope of this hold.

• Calendar Entries: All electronic calendar entries (in Outlook or any other calendar application) relating to the Veridian transaction, including meeting invitations, attendee lists, agendas, and any notes or attachments associated with calendar items.

• Virtual Data Room Contents and Access Logs: The complete contents of the virtual data room maintained by Veridian for purposes of the transaction, including all documents downloaded by or made available to Penterra, as well as all access logs, download records, and activity reports reflecting Penterra's use of the data room.

• Board Portal Materials: All materials stored in or accessible through any electronic board portal used by the Penterra Board of Directors, including electronic board books, presentations, memoranda, director questionnaires, and any communications transmitted through the portal.

• Financial Models and Spreadsheets: All financial models, valuation analyses, spreadsheets, and quantitative analyses in electronic format, including all versions, iterations, and copies thereof.

• Database Records: All records in databases, customer relationship management systems, enterprise resource planning systems, or other structured data repositories that relate to matters within the scope of this hold.

B. Physical and Hard-Copy Materials

• All printed documents, including correspondence, memoranda, reports, and agreements, whether in original or copy form.

• All handwritten notes, including notes taken during meetings, telephone calls, due diligence sessions, or board meetings.

• All board books and meeting materials maintained in hard copy by any custodian or in the offices of the Company's Legal Department or Corporate Secretary.

• All file folders, binders, and physical filing systems maintained by the custodians listed above, to the extent they contain materials within the scope of this hold.

• All physical due diligence materials received from Veridian, including any binders, reports, or documents delivered in hard copy.

• All sticky notes, margin annotations, and markings on any document relating to the Veridian transaction.

C. Third-Party Materials

• All documents and communications received from, sent to, or exchanged with the following third-party advisors in connection with the proposed acquisition:

• Garrison Zanthor & Co., LLC (financial advisor)

• Broadleaf Scientific Consulting LLC (clinical/scientific consultant)

• Stonebridge HSW Antitrust Advisors LLP (antitrust counsel)

• Prescott Whitfield Insurance Brokers, Inc. (R&W insurance broker)

• Atlas Indemnity Insurance Co. (R&W insurance carrier)

• Summit Ridge Capital Partners, LP (committed lender)

• Ironclad Trust Company, N.A. (committed lender)

• Fidelis National Escrow Corp. (escrow agent)

• All documents and communications received from, sent to, or exchanged with Veridian, Zalcourt Archer & Cole LLP, Ridgeway Partners LLC (Veridian's financial advisor), or any Veridian stockholder or stockholder representative, including Crestline Ventures, LP, Boreal Health Partners Fund III, and Apex Growth Equity Fund II.

IV. SPECIFIC PRESERVATION INSTRUCTIONS

A. Suspension of Routine Document Destruction

All routine document retention and destruction policies, backup tape recycling schedules, automated deletion protocols, and any other policies or practices that could result in the alteration or destruction of materials within the scope of this hold must be immediately suspended with respect to all materials falling within the scope of this hold. This suspension applies to all custodians, all systems, and all repositories identified herein or otherwise containing potentially relevant materials.

IT personnel responsible for managing backup systems, email servers, network storage, and archival systems must be instructed immediately to preserve all backup media, archive tapes, and disaster recovery copies that may contain potentially relevant data. No backup media should be recycled, overwritten, or destroyed pending further instruction from Calderwood & Harkness LLP.

B. Do Not Alter or Destroy

No custodian or other Penterra employee may delete, discard, shred, overwrite, modify, alter, or otherwise destroy any document or ESI within the scope of this hold. This prohibition applies regardless of whether the custodian believes the document is relevant, duplicative, privileged, or otherwise insignificant. The prohibition extends to:

(a) Deleting emails, text messages, instant messages, voicemails, or other electronic communications;

(b) Discarding, shredding, or recycling paper documents, handwritten notes, or other physical materials;

(c) Overwriting, modifying, or editing electronic files (if a document must be revised for legitimate business purposes, the prior version must be preserved as a separate file);

(d) Uninstalling software applications that may contain or manage relevant data;

(e) Reformatting, reimaging, or wiping hard drives, laptops, desktops, tablets, or mobile devices;

(f) Replacing, upgrading, or disposing of any computer hardware, mobile device, or storage media assigned to or used by any custodian without prior written approval from the Legal Department and Calderwood & Harkness LLP; and

(g) Transferring relevant files to a different storage location in a manner that could alter metadata or result in data loss.

C. Metadata Preservation

All ESI must be preserved in its native format with all metadata intact. Metadata — including file creation dates, modification dates, author information, tracked changes, comments, and other embedded data — may be relevant to the anticipated litigation and must not be altered or stripped. Documents should not be printed to hard copy and then discarded in electronic form, as the printing process does not capture metadata. Where documents exist in both electronic and hard-copy form, both versions should be preserved.

D. Personal Devices and Accounts

If any custodian used personal email accounts, personal mobile devices (including personal smartphones and tablets), personal cloud storage accounts, personal computers, or home office equipment for any business communications or to store any business documents relating to the Veridian transaction or any matter within the scope of this hold, those materials must also be preserved. Each custodian should review his or her personal devices and accounts to identify any such materials and take immediate steps to ensure their preservation. If a custodian identifies relevant materials on personal devices or accounts, the custodian should notify Thomas F. Holbrook and Megan Chu at Calderwood & Harkness LLP so that appropriate preservation measures can be implemented.

V. CONFIDENTIAL INFORMATION AND NDA OBLIGATIONS

We note that the Confidentiality Agreement (Non-Disclosure Agreement) between Penterra and Veridian, executed on March 4, 2024, contains provisions requiring the return or destruction of Veridian's confidential information upon termination of the transaction or upon request by Veridian. To the extent those contractual provisions would require Penterra to return or destroy any materials that fall within the scope of this litigation hold, the litigation hold supersedes those contractual obligations. No confidential information received from Veridian in connection with the proposed transaction — including due diligence materials, clinical data, financial information, trade secrets, or any other proprietary information — should be returned to Veridian or destroyed pending resolution of the anticipated litigation.

Penterra's obligation to preserve potentially relevant evidence for purposes of reasonably anticipated litigation is a legal obligation that takes precedence over contractual return or destruction provisions. Calderwood & Harkness LLP will address the NDA return and destruction obligations separately with Zalcourt Archer & Cole LLP, counsel for Veridian, to ensure that both parties' preservation obligations are appropriately managed. In the interim, no action should be taken to comply with any return or destruction request from Veridian without first consulting with Calderwood & Harkness LLP.

All Penterra personnel should, of course, continue to maintain the confidentiality of Veridian's confidential information in accordance with the terms of the NDA and should not disclose such information to any person or entity not authorized to receive it.

VI. DURATION OF THE HOLD

This litigation hold will remain in effect until Calderwood & Harkness LLP provides written notice that the hold has been modified, narrowed, or released. Until such written notice is received, all materials within the scope of this hold must continue to be preserved, and the instructions set forth herein must continue to be followed.

The hold applies to all materials within its scope, regardless of whether Penterra or any individual custodian believes that specific documents are relevant, irrelevant, helpful, harmful, privileged, or otherwise significant. Determinations of relevance, materiality, and privilege will be made by counsel at the appropriate time, in connection with the anticipated litigation. No custodian should make unilateral decisions regarding the relevance or discoverability of any document or category of documents.

If circumstances change — for example, if the anticipated litigation is resolved through settlement, if the scope of the claims narrows, or if additional claims are asserted — Calderwood & Harkness LLP will issue supplemental guidance updating or modifying this hold as appropriate.

VII. ACKNOWLEDGMENT AND COMPLIANCE

Each custodian identified in this notice must acknowledge receipt of this litigation hold notice in writing (email is acceptable) to both of the following individuals:

1. Thomas F. Holbrook, General Counsel & Secretary, Penterra Pharmaceuticals Corp., 1100 Meridian Boulevard, Suite 400, Princeton, NJ 08540

2. Megan Chu, Associate, Calderwood & Harkness LLP, 200 Park Avenue, 42nd Floor, New York, NY 10166; Email: mchu@calderwoodharkness.com; Direct: (212) 506-7284

The written acknowledgment should confirm that the custodian has received and read the litigation hold notice, understands his or her preservation obligations, and will comply with the instructions set forth herein. A sample acknowledgment form is attached hereto as Exhibit A.

Acknowledgments must be returned within five (5) business days of receipt — i.e., no later than Monday, October 14, 2024.

Thomas F. Holbrook is requested to circulate this notice to all identified custodians and to the head of Penterra's IT department within one (1) business day of receipt of this notice. We further request that Mr. Holbrook maintain a log of all individuals to whom this notice is distributed, together with the date of distribution and the date on which each individual's written acknowledgment is received, and provide a copy of that log to Calderwood & Harkness LLP on a rolling basis.

Any questions regarding the scope of this hold, whether specific materials fall within its scope, or how to comply with any particular instruction should be directed promptly to:

• Megan Chu, Associate, Calderwood & Harkness LLP — (212) 506-7284 / mchu@calderwoodharkness.com

• Oliver Mackenzie, Partner, Calderwood & Harkness LLP — (212) 506-7150 / omackenzie@calderwoodharkness.com

When in doubt, preserve.

VIII. CONSEQUENCES OF NON-COMPLIANCE

We cannot overstate the importance of full compliance with this litigation hold. Failure to preserve documents and ESI within the scope of this hold may expose Penterra Pharmaceuticals Corp. to severe consequences in the anticipated Delaware Court of Chancery proceeding, including but not limited to:

• Adverse Inference Instructions: The court may instruct the factfinder to presume that any destroyed or lost evidence was unfavorable to Penterra.

• Monetary Sanctions: The court may impose substantial monetary sanctions on Penterra, including the costs and attorneys' fees incurred by the opposing party in connection with spoliation motions.

• Evidentiary Sanctions: The court may exclude evidence, preclude Penterra from offering testimony on certain topics, or deem certain facts established against Penterra.

• Case-Dispositive Sanctions: In extreme cases of willful destruction, the court may enter default judgment or other dispositive sanctions against Penterra.

• Individual Liability: Individual custodians who willfully destroy evidence may face personal sanctions or other consequences.

All custodians are expected to treat this preservation obligation with the utmost seriousness and diligence. If any custodian becomes aware of the inadvertent destruction or loss of any material within the scope of this hold, the custodian must immediately notify Thomas F. Holbrook and Calderwood & Harkness LLP so that remedial measures can be taken.

IX. CONTACT INFORMATION

PRIVILEGED AND CONFIDENTIAL — ATTORNEY-CLIENT COMMUNICATION / ATTORNEY WORK PRODUCT
CALDERWOOD & HARKNESS LLP 200 Park Avenue, 42nd Floor New York, NY 10166 Telephone: (212) 506-7000 Facsimile: (212) 506-7001 www.calderwoodharkness.com
October 5, 2024
LITIGATION HOLD NOTICE PRESERVATION OF DOCUMENTS AND ELECTRONICALLY STORED INFORMATION
To: Thomas F. Holbrook, Esq. General Counsel & Secretary Penterra Pharmaceuticals Corp. 1100 Meridian Boulevard, Suite 400 Princeton, NJ 08540
From: Oliver Mackenzie, Partner, and Megan Chu, Associate Calderwood & Harkness LLP
Re: Litigation Hold Notice — Preservation of Documents and Electronically Stored Information Relating to the Proposed Acquisition of Veridian Biosciences, Inc.
Matter No.: 1018-00008
Dear Tom:
We write on an urgent basis to issue this litigation hold notice on behalf of Penterra Pharmaceuticals Corp. This notice requires the immediate preservation of all documents, electronically stored information, and tangible materials as described herein. Please circulate this notice to all identified custodians and to the head of Penterra's IT department within one (1) business day of your receipt. The obligations set forth in this notice take effect immediately upon receipt and are ongoing until this hold is formally released in writing by Calderwood & Harkness LLP.
I. PURPOSE AND LEGAL OBLIGATION
This notice directs Penterra Pharmaceuticals Corp. ("Penterra" or the "Company") to immediately preserve all documents, electronically stored information ("ESI"), and tangible materials relating to the proposed acquisition of Veridian Biosciences, Inc. ("Veridian") and the termination thereof, as more fully described in the sections that follow.
As you are aware, on September 30, 2024, Penterra terminated the Stock Purchase Agreement dated June 10, 2024 (the "SPA") pursuant to Section 8.1(d) thereof, on the grounds that a material adverse effect ("MAE") had occurred with respect to Veridian's business, rendering the conditions to Buyer's closing obligations under Sections 7.2(a) and 7.2(b) incapable of being satisfied prior to the Outside Date of December 10, 2024. The termination followed Penterra's Deficiency Notice dated September 6, 2024, in which the Company formally notified Veridian and the Sellers of the facts and circumstances constituting, in Penterra's determination, a material adverse effect within the meaning of Section 1.1 of the SPA.
Prior to termination, Veridian disputed Penterra's MAE determination. Specifically, by letter dated September 13, 2024, counsel for Veridian and the Sellers — Zalcourt Archer & Cole LLP (Rebecca Whitmore and Jonathan Pratt) — communicated Veridian's position that no material adverse effect had occurred and demanded that Penterra proceed to close the transaction in accordance with the terms of the SPA. That correspondence, and subsequent communications between counsel, made clear that Veridian and the Sellers intend to pursue all available legal remedies, including claims for breach of contract and specific performance, in the event Penterra did not withdraw its termination notice and consummate the closing.
Based on these communications and the circumstances surrounding the transaction, Calderwood & Harkness LLP reasonably anticipates that Veridian will commence litigation in the Court of Chancery of the State of Delaware seeking, among other things, claims for breach of contract and specific performance compelling Penterra to close the acquisition. The anticipated case caption is Veridian Biosciences, Inc. v. Penterra Pharmaceuticals Corp., C.A. No. 2024-_ (Del. Ch.), and we expect that a complaint may be filed on or around November 15, 2024, or potentially sooner, depending on the pace of pre-suit developments.
Under well-established law, Penterra has a legal obligation to preserve all documents and ESI that are potentially relevant to reasonably anticipated litigation. This duty attaches at the point litigation becomes reasonably foreseeable — which, given Veridian's express dispute of the MAE determination and demand for closing, is no later than September 13, 2024, and in any event is triggered as of the date of this notice. The duty of preservation is broad and extends to all materials that may be relevant to any claim or defense in the anticipated proceeding, regardless of whether Penterra believes a particular document is helpful, harmful, privileged, or immaterial. Relevance determinations and privilege designations will be made by counsel at the appropriate time.
Failure to preserve materials within the scope of this hold may result in severe consequences, including court-imposed sanctions, adverse inference instructions (permitting a factfinder to presume that destroyed evidence was unfavorable to Penterra), monetary penalties, and other remedies available under the Delaware Court of Chancery Rules and applicable law. All custodians and personnel who receive this notice are expected to treat this preservation obligation with the utmost seriousness and to comply fully with the instructions set forth herein.
II. SCOPE OF THE LITIGATION HOLD
The scope of this litigation hold is defined by subject matter, temporal period, and custodian, as set forth below. If there is any doubt as to whether a particular document, communication, or data source falls within the scope of this hold, the document or data should be preserved and counsel should be consulted.
A. Subject Matter Scope
All documents and ESI relating to, concerning, referencing, or in any way connected with the following subject matters must be preserved:
1. The Transaction Generally. All documents and communications relating to the proposed acquisition of 100% of the outstanding capital stock of Veridian Biosciences, Inc. for a purchase price of $900,000,000 in cash (subject to customary purchase price adjustments), including all aspects of the transaction from its inception through the present date and continuing. This includes, without limitation, all documents relating to the origination of Penterra's interest in acquiring Veridian (on or about February 12, 2024, when the Penterra Board of Directors authorized exploration of the acquisition opportunity), all negotiations between the parties and their respective advisors, all due diligence activities, all board-level deliberations and approvals, all deal process materials, all communications with third-party advisors, and all post-signing activities through and including the termination of the SPA and all post-termination events and communications.
2. The Stock Purchase Agreement and Ancillary Agreements. The SPA dated June 10, 2024, including all prior drafts (beginning with the initial draft circulated on or about April 15, 2024 and all subsequent revised drafts, markups, redlines, and comments), the final executed agreement, the Disclosure Schedules (including all updates thereto), and all ancillary transaction agreements, including but not limited to:
(a) the Escrow Agreement with Fidelis National Escrow Corp., providing for the establishment and administration of the indemnification escrow and purchase price adjustment escrow;
(b) the Stockholder Representative Agreement, pursuant to which David Ng was appointed as the representative of the Sellers for post-closing purposes;
(c) the Non-Competition and Non-Solicitation Agreements to be executed by Dr. Julian Marek (Veridian's Chief Executive Officer) and Dr. Priya Chandrasekaran (Veridian's Chief Scientific Officer);
(d) the Transition Services Agreement, setting forth the terms pursuant to which Veridian would provide certain transitional services to Penterra following the closing;
(e) the Side Letter regarding Financing Cooperation Obligations, addressing Veridian's obligation to cooperate with Penterra's debt financing efforts; and
(f) all other agreements, certificates, instruments, and documents contemplated by or executed in connection with the SPA.
3. The Material Adverse Effect Analysis. All documents, analyses, memoranda, communications, presentations, and work product (including draft and final versions) relating to the determination, evaluation, or assessment of whether a material adverse effect had occurred with respect to Veridian or its business, condition (financial or otherwise), results of operations, assets, or prospects. This category includes, without limitation:
(a) all analyses of the MAE definition set forth in Section 1.1 of the SPA, including the specific language of the definition and the scope and applicability of the enumerated MAE carveouts (relating to pandemics and public health emergencies, general economic conditions, conditions affecting the biopharmaceutical industry generally, changes in applicable law or accounting standards, natural disasters, acts of war or terrorism, conditions in the financial or capital markets, and the announcement or pendency of the transactions contemplated by the SPA);
(b) all analyses of the disproportionate impact exception to the MAE carveouts, including any assessment of whether the events at issue disproportionately affected Veridian as compared to other similarly situated companies in the biopharmaceutical industry;
(c) all internal Penterra memoranda, presentations, or analyses evaluating the factual basis for Penterra's MAE claim, including assessments of the clinical, regulatory, financial, and commercial impact of the events described in Section II.A.4 and II.A.5 below;
(d) all communications with Calderwood & Harkness LLP and other advisors regarding the MAE analysis; and
(e) all Delaware case law analyses and legal memoranda prepared in connection with the MAE determination, including analyses of Akorn, Inc. v. Fresenius Kabi AG, 2018 WL 4719347 (Del. Ch. Oct. 1, 2018), aff'd, 198 A.3d 724 (Del. 2018), and other relevant precedents.
4. VRD-4187 Clinical Data and the Marlowe Asset Management-2 Trial. All documents and communications relating to VRD-4187 — Veridian's bispecific T-cell engager compound targeting delta-like ligand 3 (DLL3) for the treatment of relapsed or refractory small cell lung cancer ("SCLC") — and the Marlowe Asset Management-2 Phase II clinical trial (registered at ClinicalTrials.gov under Identifier NCT05837291). This category specifically includes, without limitation:
(a) all documents relating to the Data Monitoring Committee ("DMC") interim analysis dated August 14, 2024, including the DMC's recommendation for enrollment suspension and dose modification protocols;
(b) all clinical safety data reviewed by the DMC or provided to Penterra, including the Grade ≥3 cytokine release syndrome ("CRS") data (reported at 23.4% in the VRD-4187 treatment arm versus 4.1% in the control arm);
(c) all data concerning treatment-related deaths in the Marlowe Asset Management-2 trial, including the seven (7) deaths in the VRD-4187 arm (representing 3.6% of the treatment cohort) and the one (1) death in the control arm (representing 0.5% of the control cohort);
(d) all efficacy data, including overall response rate data (reported at 31.4% in the VRD-4187 treatment arm versus 28.9% in the control arm, with a p-value of 0.58, failing to meet statistical significance);
(e) all data relating to the 387 patients enrolled across the 42 clinical sites in the United States and European Union participating in the Marlowe Asset Management-2 trial;
(f) all documents relating to Veridian's notification to Penterra on August 16, 2024 pursuant to Section 5.1(b) of the SPA regarding the DMC interim analysis results and enrollment suspension recommendation;
(g) the supplemental clinical assessment prepared and delivered by Broadleaf Scientific Consulting LLC on August 19, 2024, authored by or under the direction of Dr. Raymond Kapoor (lead consultant), including all underlying data, draft reports, and communications between Penterra and Broadleaf Scientific regarding the scope, findings, and conclusions of that assessment; and
(h) all other clinical data, trial protocols, safety reports, adverse event reports, statistical analyses, and communications relating to VRD-4187 or the Marlowe Asset Management-2 trial that were reviewed, received, generated, or discussed by Penterra personnel in connection with the proposed acquisition.
5. FDA Regulatory Matters. All documents and communications relating to FDA regulatory developments concerning VRD-4187 and the Marlowe Asset Management-2 trial, including without limitation:
(a) the FDA partial clinical hold imposed on August 22, 2024 on Investigational New Drug Application No. 154832 (IND 154832) for VRD-4187;
(b) all communications with or about the U.S. Food and Drug Administration regarding the clinical hold, including any correspondence between Veridian and the FDA that was shared with or obtained by Penterra;
(c) Veridian's Protocol Amendment v4.0, dated August 28, 2024, which implemented mandatory tocilizumab prophylaxis and a dose reduction from 1.5 mg/kg to 0.75 mg/kg;
(d) all internal Penterra assessments of the regulatory impact of the clinical hold and protocol amendment on the commercial viability and timeline for VRD-4187;
(e) all communications involving or referencing Dr. Anne-Marie Fontaine, Veridian's Vice President of Regulatory Affairs, regarding regulatory matters connected to VRD-4187, the Marlowe Asset Management-2 trial, or the clinical hold; and
(f) all documents relating to any other FDA or regulatory agency interactions concerning Veridian's product pipeline that were reviewed or discussed in connection with the proposed acquisition.
6. Due Diligence Materials. All due diligence materials reviewed, produced, or generated in connection with the proposed acquisition of Veridian, including without limitation:
(a) the complete contents of the virtual data room maintained by Veridian for purposes of the transaction, including all documents uploaded, all access logs and download records, and all indices or file listings;
(b) all due diligence memoranda prepared by Penterra's internal personnel or external advisors, including memoranda addressing corporate matters, intellectual property, material contracts, regulatory and FDA matters, employment and benefits, environmental matters, tax matters, litigation and disputes, and insurance;
(c) the Diligence Summary Memorandum prepared for and presented to the Penterra Board of Directors, dated June 3, 2024, summarizing the key findings and risk factors identified during the due diligence process;
(d) all due diligence request lists, follow-up questions, management presentations, and expert session materials; and
(e) all supplementary or updated due diligence conducted between signing and the termination of the SPA.
7. Deficiency Notice, Termination, and Related Correspondence. All documents and communications relating to:
(a) the Deficiency Notice issued by Penterra on September 6, 2024, including all drafts, internal deliberations regarding the content and timing of the notice, and the final notice as delivered;
(b) Veridian's response to the Deficiency Notice, dated September 13, 2024, in which Veridian disputed the occurrence of an MAE and demanded that Penterra proceed to closing;
(c) the Termination Notice issued by Penterra on September 30, 2024 pursuant to Section 8.1(d) of the SPA, including all drafts, internal deliberations, and the final notice as delivered;
(d) all correspondence between Calderwood & Harkness LLP and Zalcourt Archer & Cole LLP (Rebecca Whitmore, Jonathan Pratt) regarding the Deficiency Notice, the MAE determination, the termination, or any pre-suit dispute resolution efforts; and
(e) all other communications between the parties or their representatives relating to the dispute, whether before or after the termination of the SPA.
8. Board Materials and Corporate Approvals. All materials prepared for, presented to, or generated by the Penterra Board of Directors in connection with the proposed acquisition, including without limitation:
(a) the transaction summary presentation prepared with Garrison Zanthor & Co., LLC and delivered to the Board on June 9, 2024;
(b) the Board resolution dated June 10, 2024 authorizing the execution and delivery of the SPA and the consummation of the transactions contemplated thereby;
(c) the Board resolution dated September 27, 2024 authorizing the termination of the SPA;
(d) all other Board resolutions, consents, and actions relating to the Veridian transaction;
(e) all Board meeting minutes (whether in draft or final form) for any meeting at which the Veridian transaction was discussed;
(f) all Board books, presentations, memoranda, and supporting materials distributed in advance of or during any Board meeting at which the Veridian transaction was on the agenda;
(g) all communications among Board members, or between Board members and management, relating to the Veridian transaction, including communications with Board Chair Margaret Liu Whitfield; and
(h) all committee-level materials, including any materials of the Audit Committee, Compensation Committee, or any special committee, to the extent such materials relate to the Veridian transaction.
9. Financial Advisor Communications. All communications with, and work product received from, Garrison Zanthor & Co., LLC, including without limitation:
(a) the fairness opinion delivered by Garrison Zanthor to the Penterra Board on June 9, 2024, including all drafts, presentations, and supporting analyses;
(b) all valuation analyses prepared by Garrison Zanthor, including discounted cash flow analyses, comparable company analyses, precedent transaction analyses, and any other methodologies employed;
(c) all engagement letters, fee arrangements, and indemnification agreements between Penterra and Garrison Zanthor;
(d) all communications between Penterra personnel and Kevin Driscoll (Managing Director, Garrison Zanthor) and any other Garrison Zanthor personnel involved in the engagement; and
(e) all pre-signing and post-signing communications between Penterra and Garrison Zanthor regarding the transaction, the MAE analysis, the termination, or the anticipated litigation.
10. Financing Documents. All documents relating to the committed debt financing for the proposed acquisition, including without limitation:
(a) the Commitment Letter dated June 7, 2024 (Reference No. CL-2024-PPCA-0607), pursuant to which Summit Ridge Capital Partners, LP (Philip Ostrander, Managing Partner) and Ironclad Trust Company, N.A. (Samantha Hwang, Senior Vice President, Leveraged Finance) committed to provide a $500,000,000 senior secured term loan facility to Penterra in connection with the acquisition;
(b) the draft credit agreement, all term sheets, fee letters (including arrangement fees and commitment fees), and any amendments, supplements, or waivers thereto;
(c) the notice of termination of the financing commitment issued on or about October 1, 2024, and all related correspondence; and
(d) all communications between Penterra and the lenders or their counsel regarding the financing, the status of the transaction, the MAE events, or the termination.
11. Representation and Warranty Insurance. All documents relating to the buyer-side representation and warranty insurance policy obtained by Penterra in connection with the proposed acquisition, including without limitation:
(a) the representation and warranty insurance policy (Policy No. AIC-RWI-2024-07892) issued by Atlas Indemnity Insurance Co. (Graham Fielding, Senior Vice President), with a policy limit of $180,000,000, a self-insured retention of $9,000,000, an annual premium of $3,960,000, and an underwriting fee of $75,000;
(b) all communications with Prescott Whitfield Insurance Brokers, Inc. (Amanda Chen-Kowalski, Managing Director) regarding the brokerage, placement, and terms of the R&W insurance policy;
(c) the underwriting process, including the no-claims declaration, the underwriting call, and all diligence materials provided to the insurer;
(d) all communications with Atlas Indemnity Insurance Co. regarding the status of the policy following the termination of the SPA; and
(e) any claims, notices, or correspondence relating to the R&W insurance policy.
12. Veridian Valuation and Financial Analysis. All internal Penterra analyses and third-party analyses of Veridian's valuation, financial condition, pipeline value, and commercial prospects, including without limitation:
(a) all financial models, discounted cash flow analyses, risk-adjusted net present value calculations, and comparable company or transaction analyses prepared or reviewed by Penterra or its advisors;
(b) all analyses referencing Veridian's FY2023 net loss of $87.3 million, Veridian's cash and cash equivalents of $112.4 million as of March 31, 2024, Veridian's cumulative total capital raised of approximately $420 million, Veridian's federal net operating loss carryforward of approximately $312 million, and the Section 382 limitations applicable thereto;
(c) all projections, forecasts, and financial plans provided by Veridian or prepared by Penterra in connection with the due diligence and valuation process; and
(d) all sensitivity analyses and scenario models assessing the impact of clinical, regulatory, or commercial developments on the value of the acquisition.
13. Antitrust and HSR Act Matters. All documents relating to antitrust review and compliance in connection with the proposed acquisition, including without limitation:
(a) the Hart-Scott-Rodino premerger notification filing submitted on April 22, 2024;
(b) the early termination of the HSR Act waiting period, granted on May 20, 2024;
(c) all work product of Stonebridge HSW Antitrust Advisors LLP (Martin Prumvane, Partner), including the antitrust risk assessment, the preparation of the HSR filing, and all communications with the Federal Trade Commission or the Department of Justice; and
(d) all internal Penterra analyses of antitrust risk associated with the proposed acquisition.
14. Post-Termination Communications. All communications occurring after September 30, 2024, between any Penterra personnel (including officers, directors, employees, and agents) and any of the following:
(a) any Veridian personnel (officers, directors, employees, or agents);
(b) any Veridian stockholders or their representatives, including David Ng (Stockholder Representative), Crestline Ventures, LP, Boreal Health Partners Fund III, and Apex Growth Equity Fund II;
(c) Zalcourt Archer & Cole LLP or any other counsel representing Veridian or the Sellers;
(d) Ridgeway Partners LLC (Veridian's financial advisor) or any other advisor to Veridian; and
(e) any other third party, to the extent such communications relate to the terminated transaction, the dispute between the parties, or the anticipated litigation.
B. Temporal Scope
The temporal scope of this litigation hold extends to all documents and ESI created, sent, received, modified, accessed, or stored during the following periods:
(a) Primary Period: January 1, 2024 through the present date and continuing until this hold is lifted in writing by Calderwood & Harkness LLP. This period captures the full arc of the proposed transaction, from Penterra's initial consideration of the acquisition opportunity through the termination and all subsequent developments.
(b) Extended Period for Background Materials: For documents and ESI relating to Penterra's immuno-oncology strategy, the rationale for pursuing a DLL3-targeted therapeutic through acquisition, and Penterra's internal pipeline developments (including, specifically, the PPC-0921 Phase III futility analysis dated November 18, 2023, which we understand contributed to the strategic decision to pursue an external acquisition in the immuno-oncology space), the temporal scope extends back to October 1, 2023.
The hold is continuous and ongoing. All materials generated or received after the date of this notice that fall within the subject matter scope described above must likewise be preserved.
C. Custodians.  The following individuals at Penterra Pharmaceuticals Corp. are identified as key custodians whose files, email accounts, electronic storage, and other repositories must be preserved in accordance with this notice:
1.  Dr. Anand Rajagopal — Chief Executive Officer
2.  Catherine M. Burgess — Chief Financial Officer
3.  Thomas F. Holbrook — General Counsel & Secretary
4.  Natalie Reiner — Senior Vice President, Corporate Development
5.  Margaret Liu Whitfield — Chair, Board of Directors
6.  All other members of the Penterra Board of Directors who participated in deliberations, received materials, or cast votes regarding the proposed acquisition of Veridian, including the authorization of the SPA, the review of the MAE determination, and the authorization of the termination.
7.  Any Penterra employees who participated in due diligence activities, integration planning, or direct communications with Veridian personnel, Veridian's advisors, or the Sellers in connection with the proposed acquisition.
8.  Any Penterra employees who received, reviewed, analyzed, or discussed the Marlowe Asset Management-2 clinical data, the DMC interim analysis, the Broadleaf Scientific supplemental assessment, or the FDA partial clinical hold on IND 154832.
Tom, we ask that you work with the relevant department heads to identify all individuals who fall within categories 6, 7, and 8 above and to ensure that those individuals receive a copy of this notice and are subject to its requirements. We are happy to consult with you on the identification of additional custodians as needed.
In addition, Penterra's IT department must be immediately notified to take the following actions:
(a) Suspend any automatic deletion, archival rotation, or purge policies applicable to the custodians listed above and to the email accounts, network drives, shared drives, local drives, mobile devices, and any other electronic storage systems or repositories used by such custodians.
(b) Preserve all backup tapes, disaster recovery media, and archived data that may contain materials within the scope of this hold.
(c) Ensure that no hardware (including laptops, desktops, servers, tablets, and mobile devices) assigned to or used by any custodian is reformatted, recycled, reassigned, or disposed of without prior written approval from the Legal Department and Calderwood & Harkness LLP.
(d) Preserve all access logs, audit trails, and system records for the virtual data room and any other shared platforms used in connection with the transaction.
III. TYPES OF MATERIALS TO BE PRESERVED
The obligation to preserve extends to all forms and formats of documents and information, including but not limited to the following categories:
A. Electronic Materials
•  Email: All email communications (including all attachments, embedded images, and linked files) in all email systems used by the custodians, including Strathmore Data Systems and Outlook, archived email repositories, personal email accounts (e.g., Northgate Software, Cascade Health IT, or other consumer email services) to the extent used for any business communications relating to the Veridian transaction, and any other email platforms.
•  Instant Messages and Text Messages: All text messages (SMS and MMS), instant messages, and communications transmitted via messaging platforms used by Penterra, including Northgate Data Systems, Meridian Solutions, Meridian Services Inc., Signal, or any other messaging application, to the extent such communications relate to matters within the scope of this hold.
•  Electronic Documents: All electronic documents in any format, including but not limited to Microsoft Word, Excel, Northgate Services Inc., and PDF files, as well as documents created in any other application, stored on network drives, shared drives, local hard drives, laptops, tablets, mobile devices, USB drives, external hard drives, and cloud storage services (including Aldermere Systems, Cobalt Ridge Systems, Hollowell Health IT, Larkspur Technologies, and any other cloud-based storage).
•  Voicemail Recordings: All voicemail messages stored on Penterra's telephone systems, mobile devices, or any other voicemail platforms, to the extent such messages relate to matters within the scope of this hold.
•  Calendar Entries: All electronic calendar entries (in Outlook or any other calendar application) relating to the Veridian transaction, including meeting invitations, attendee lists, agendas, and any notes or attachments associated with calendar items.
•  Virtual Data Room Contents and Access Logs: The complete contents of the virtual data room maintained by Veridian for purposes of the transaction, including all documents downloaded by or made available to Penterra, as well as all access logs, download records, and activity reports reflecting Penterra's use of the data room.
•  Board Portal Materials: All materials stored in or accessible through any electronic board portal used by the Penterra Board of Directors, including electronic board books, presentations, memoranda, director questionnaires, and any communications transmitted through the portal.
•  Financial Models and Spreadsheets: All financial models, valuation analyses, spreadsheets, and quantitative analyses in electronic format, including all versions, iterations, and copies thereof.
•  Database Records: All records in databases, customer relationship management systems, enterprise resource planning systems, or other structured data repositories that relate to matters within the scope of this hold.
B. Physical and Hard-Copy Materials
•  All printed documents, including correspondence, memoranda, reports, and agreements, whether in original or copy form.
•  All handwritten notes, including notes taken during meetings, telephone calls, due diligence sessions, or board meetings.
•  All board books and meeting materials maintained in hard copy by any custodian or in the offices of the Company's Legal Department or Corporate Secretary.
•  All file folders, binders, and physical filing systems maintained by the custodians listed above, to the extent they contain materials within the scope of this hold.
•  All physical due diligence materials received from Veridian, including any binders, reports, or documents delivered in hard copy.
•  All sticky notes, margin annotations, and markings on any document relating to the Veridian transaction.
C. Third-Party Materials
•  All documents and communications received from, sent to, or exchanged with the following third-party advisors in connection with the proposed acquisition:
•  Garrison Zanthor & Co., LLC (financial advisor)
•  Broadleaf Scientific Consulting LLC (clinical/scientific consultant)
•  Stonebridge HSW Antitrust Advisors LLP (antitrust counsel)
•  Prescott Whitfield Insurance Brokers, Inc. (R&W insurance broker)
•  Atlas Indemnity Insurance Co. (R&W insurance carrier)
•  Summit Ridge Capital Partners, LP (committed lender)
•  Ironclad Trust Company, N.A. (committed lender)
•  Fidelis National Escrow Corp. (escrow agent)
•  All documents and communications received from, sent to, or exchanged with Veridian, Zalcourt Archer & Cole LLP, Ridgeway Partners LLC (Veridian's financial advisor), or any Veridian stockholder or stockholder representative, including Crestline Ventures, LP, Boreal Health Partners Fund III, and Apex Growth Equity Fund II.
IV. SPECIFIC PRESERVATION INSTRUCTIONS
A. Suspension of Routine Document Destruction
All routine document retention and destruction policies, backup tape recycling schedules, automated deletion protocols, and any other policies or practices that could result in the alteration or destruction of materials within the scope of this hold must be immediately suspended with respect to all materials falling within the scope of this hold. This suspension applies to all custodians, all systems, and all repositories identified herein or otherwise containing potentially relevant materials.
IT personnel responsible for managing backup systems, email servers, network storage, and archival systems must be instructed immediately to preserve all backup media, archive tapes, and disaster recovery copies that may contain potentially relevant data. No backup media should be recycled, overwritten, or destroyed pending further instruction from Calderwood & Harkness LLP.
B. Do Not Alter or Destroy
No custodian or other Penterra employee may delete, discard, shred, overwrite, modify, alter, or otherwise destroy any document or ESI within the scope of this hold. This prohibition applies regardless of whether the custodian believes the document is relevant, duplicative, privileged, or otherwise insignificant. The prohibition extends to:
(a) Deleting emails, text messages, instant messages, voicemails, or other electronic communications;
(b) Discarding, shredding, or recycling paper documents, handwritten notes, or other physical materials;
(c) Overwriting, modifying, or editing electronic files (if a document must be revised for legitimate business purposes, the prior version must be preserved as a separate file);
(d) Uninstalling software applications that may contain or manage relevant data;
(e) Reformatting, reimaging, or wiping hard drives, laptops, desktops, tablets, or mobile devices;
(f) Replacing, upgrading, or disposing of any computer hardware, mobile device, or storage media assigned to or used by any custodian without prior written approval from the Legal Department and Calderwood & Harkness LLP; and
(g) Transferring relevant files to a different storage location in a manner that could alter metadata or result in data loss.
C. Metadata Preservation
All ESI must be preserved in its native format with all metadata intact. Metadata — including file creation dates, modification dates, author information, tracked changes, comments, and other embedded data — may be relevant to the anticipated litigation and must not be altered or stripped. Documents should not be printed to hard copy and then discarded in electronic form, as the printing process does not capture metadata. Where documents exist in both electronic and hard-copy form, both versions should be preserved.
D. Personal Devices and Accounts
If any custodian used personal email accounts, personal mobile devices (including personal smartphones and tablets), personal cloud storage accounts, personal computers, or home office equipment for any business communications or to store any business documents relating to the Veridian transaction or any matter within the scope of this hold, those materials must also be preserved. Each custodian should review his or her personal devices and accounts to identify any such materials and take immediate steps to ensure their preservation. If a custodian identifies relevant materials on personal devices or accounts, the custodian should notify Thomas F. Holbrook and Megan Chu at Calderwood & Harkness LLP so that appropriate preservation measures can be implemented.
V. CONFIDENTIAL INFORMATION AND NDA OBLIGATIONS
We note that the Confidentiality Agreement (Non-Disclosure Agreement) between Penterra and Veridian, executed on March 4, 2024, contains provisions requiring the return or destruction of Veridian's confidential information upon termination of the transaction or upon request by Veridian. To the extent those contractual provisions would require Penterra to return or destroy any materials that fall within the scope of this litigation hold, the litigation hold supersedes those contractual obligations. No confidential information received from Veridian in connection with the proposed transaction — including due diligence materials, clinical data, financial information, trade secrets, or any other proprietary information — should be returned to Veridian or destroyed pending resolution of the anticipated litigation.
Penterra's obligation to preserve potentially relevant evidence for purposes of reasonably anticipated litigation is a legal obligation that takes precedence over contractual return or destruction provisions. Calderwood & Harkness LLP will address the NDA return and destruction obligations separately with Zalcourt Archer & Cole LLP, counsel for Veridian, to ensure that both parties' preservation obligations are appropriately managed. In the interim, no action should be taken to comply with any return or destruction request from Veridian without first consulting with Calderwood & Harkness LLP.
All Penterra personnel should, of course, continue to maintain the confidentiality of Veridian's confidential information in accordance with the terms of the NDA and should not disclose such information to any person or entity not authorized to receive it.
VI. DURATION OF THE HOLD
This litigation hold will remain in effect until Calderwood & Harkness LLP provides written notice that the hold has been modified, narrowed, or released. Until such written notice is received, all materials within the scope of this hold must continue to be preserved, and the instructions set forth herein must continue to be followed.
The hold applies to all materials within its scope, regardless of whether Penterra or any individual custodian believes that specific documents are relevant, irrelevant, helpful, harmful, privileged, or otherwise significant. Determinations of relevance, materiality, and privilege will be made by counsel at the appropriate time, in connection with the anticipated litigation. No custodian should make unilateral decisions regarding the relevance or discoverability of any document or category of documents.
If circumstances change — for example, if the anticipated litigation is resolved through settlement, if the scope of the claims narrows, or if additional claims are asserted — Calderwood & Harkness LLP will issue supplemental guidance updating or modifying this hold as appropriate.
VII. ACKNOWLEDGMENT AND COMPLIANCE
Each custodian identified in this notice must acknowledge receipt of this litigation hold notice in writing (email is acceptable) to both of the following individuals:
1.  Thomas F. Holbrook, General Counsel & Secretary, Penterra Pharmaceuticals Corp., 1100 Meridian Boulevard, Suite 400, Princeton, NJ 08540
2.  Megan Chu, Associate, Calderwood & Harkness LLP, 200 Park Avenue, 42nd Floor, New York, NY 10166; Email: mchu@calderwoodharkness.com; Direct: (212) 506-7284
The written acknowledgment should confirm that the custodian has received and read the litigation hold notice, understands his or her preservation obligations, and will comply with the instructions set forth herein. A sample acknowledgment form is attached hereto as Exhibit A.
Acknowledgments must be returned within five (5) business days of receipt — i.e., no later than Monday, October 14, 2024.
Thomas F. Holbrook is requested to circulate this notice to all identified custodians and to the head of Penterra's IT department within one (1) business day of receipt of this notice. We further request that Mr. Holbrook maintain a log of all individuals to whom this notice is distributed, together with the date of distribution and the date on which each individual's written acknowledgment is received, and provide a copy of that log to Calderwood & Harkness LLP on a rolling basis.
Any questions regarding the scope of this hold, whether specific materials fall within its scope, or how to comply with any particular instruction should be directed promptly to:
•  Megan Chu, Associate, Calderwood & Harkness LLP — (212) 506-7284 / mchu@calderwoodharkness.com
•  Oliver Mackenzie, Partner, Calderwood & Harkness LLP — (212) 506-7150 / omackenzie@calderwoodharkness.com
When in doubt, preserve.
VIII. CONSEQUENCES OF NON-COMPLIANCE
We cannot overstate the importance of full compliance with this litigation hold. Failure to preserve documents and ESI within the scope of this hold may expose Penterra Pharmaceuticals Corp. to severe consequences in the anticipated Delaware Court of Chancery proceeding, including but not limited to:
•  Adverse Inference Instructions: The court may instruct the factfinder to presume that any destroyed or lost evidence was unfavorable to Penterra.
•  Monetary Sanctions: The court may impose substantial monetary sanctions on Penterra, including the costs and attorneys' fees incurred by the opposing party in connection with spoliation motions.
•  Evidentiary Sanctions: The court may exclude evidence, preclude Penterra from offering testimony on certain topics, or deem certain facts established against Penterra.
•  Case-Dispositive Sanctions: In extreme cases of willful destruction, the court may enter default judgment or other dispositive sanctions against Penterra.
•  Individual Liability: Individual custodians who willfully destroy evidence may face personal sanctions or other consequences.
All custodians are expected to treat this preservation obligation with the utmost seriousness and diligence. If any custodian becomes aware of the inadvertent destruction or loss of any material within the scope of this hold, the custodian must immediately notify Thomas F. Holbrook and Calderwood & Harkness LLP so that remedial measures can be taken.
IX. CONTACT INFORMATION
For any questions, concerns, or guidance regarding this litigation hold, please contact:
Oliver Mackenzie Partner Calderwood & Harkness LLP 200 Park Avenue, 42nd Floor New York, NY 10166 Telephone: (212) 506-7150
Email: omackenzie@calderwoodharkness.com
Megan Chu Associate Calderwood & Harkness LLP 200 Park Avenue, 42nd Floor New York, NY 10166 Telephone: (212) 506-7284
Email: mchu@calderwoodharkness.com
We are available at any time to answer questions and provide guidance. Please do not hesitate to reach out. When in doubt, preserve.
We appreciate your prompt attention to this matter and your cooperation in ensuring Penterra's full compliance with its preservation obligations.
Very truly yours,
CALDERWOOD & HARKNESS LLP
By: ________
Oliver Mackenzie Partner
By: ________
Megan Chu Associate
DISTRIBUTION:
•  Thomas F. Holbrook, Esq., General Counsel & Secretary, Penterra Pharmaceuticals Corp.
•  (To be distributed by Mr. Holbrook to all identified custodians and to the Head of Penterra's IT Department in accordance with the instructions set forth herein.)
Enclosure: Exhibit A — Custodian Acknowledgment Form (to be distributed with this notice)
PRIVILEGED AND CONFIDENTIAL — ATTORNEY-CLIENT COMMUNICATION / ATTORNEY WORK PRODUCT This document and the information contained herein are protected by the attorney-client privilege and the work product doctrine. Unauthorized disclosure, copying, or distribution of this document is strictly prohibited.